Fairbanks, Morse & Co. v. Heihn , 29 S.D. 215 ( 1912 )

WHITING, J.

This action was brought by plaintiff to recover of defendants the purchase price of one gasoline engine sold defendants by plaintiff under a contract which provided, among other things, that the “engine shall be tested at our works before shipment and shall develop 25 actual horse power.” Though two special findings and a general verdict were submitted to the jury, yet in fact but one question was left for its determination: Did ■the engine in question develop 25 horse .power after the same was received by defendants? Upon this question there was offered and received, over proper objections thereto, the testimony of witnesses who compared the capacity of said engine with that of another engine. There was testimony received, over proper objections, going to prove that the engine with which comparison was made was rated as a 20 horse power engine; the proof of such rating resting solely upon the fact that a plate, attached to such engine by the makers thereof, was marked to indicate 20 horse power. There was no testimony offered to prove that such engine had been tested and had, upon such test, developed 20 actuol ■horse power. It is the contention of appellants that the court should not have allowed any comparison between the two engines without some competent proof of the actual horse-power capacity of • the engine with which comparison was attempted to be made. Appellant is clearly correct. It needs no argument to demonstrate that, before one article can be used as a standard from which to determine the capacity of a second article, there should be proof of the capacity of the article, which is so used as a standard of measurement or comparison; as well allow the scales of a merchant .to be proven false by comparing same with those of another merchant, w-ithaut proof of correctness of such other scales.

The judgment of the'trial court and order denying a new trial are reversed.